1. Employee vs. Employer Contributions
Most 401(k) plans have both employee and employer contributions. Contributions made by the employee are always considered marital property if made during the marriage. However, employer contributions may come with vesting rules.
That means part of your spouse’s balance may not be fully owned by them yet. When you split the account, the QDRO needs to address whether you’re dividing:
- Only vested employer contributions
- All contributions with a later forfeiture if they’re not vested
Failing to account for this properly can result in a smaller share for the alternate payee—or complications if amounts later disappear due to vesting issues.

